A.L. and Department of Veterans Affairs, West Palm Beach VA Medical Center, West Palm Beach, FL (Board decision, April 20, 2023)

ECAB final decision. The Board affirmed OWCP’s denial of A.L.’s continuation of pay claim after an October 5, 2021 COVID-19 exposure. He filed the required Form CA-1 on March 11, 2022, beyond the 30-day notice period. A party may petition the Board for reconsideration within 30 days of issuance unless the order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

The Board used the last exposure date as the injury date under OWCP’s COVID-19 guidance. The much later filing of the approved injury form did not meet FECA’s timing requirement for continuation of pay.

Decision snapshot

• Authority: 5 U.S.C. § 8118(a).
• Outcome: Continuation of pay denied as untimely.
• Key point: Continuation of pay denied as untimely.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.L., Appellant
)
)
and ) Docket No. 22-1355
) Issued: April 20, 2023
DEPARTMENT OF VETERANS AFFAIRS,
)
WEST PALM BEACH VA MEDICAL CENTER,
)
West Palm Beach, FL, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 16, 2022 appellant filed a timely appeal from a March 21, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

1
Pursuant to the Board’s Rules of Procedure, an appeal is considered filed when received by the Clerk of the Appellate Boards. 20 C.F.R. § 501.3(f). However, when the date of receipt would result in a loss of appeal rights, the appeal will be considered to have been filed as of the date of the U.S. Postal Service postmark or other carriers date markings. Id. at § 501.3(f)(1). The 180th day following OWCP’s March 21, 2022 decision was Saturday September 17, 2022. Because using September 22, 2022, the date the appeal was received by the Clerk of the Appellate Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark is September 16, 2022, rendering the appeal timely filed. Id. 2 5 U.S.C. § 8101 et seq.
 ISSUE

The issue is whether appellant has met his burden of proof to establish entitlement to continuation of pay (COP).

FACTUAL HISTORY

On March 11, 2022 appellant, then a 49-year-old nurse, filed a traumatic injury claim (Form CA-1) alleging that on October 5, 2021 he was exposed to COVID-19 in his employing establishment’s hospital emergency room while in the performance of duty. On the reverse side of the claim form, appellant’s supervisor acknowledged that he was injured in the performance of duty.

In support of his claim, appellant submitted a polymerase chain reaction test result dated October 5, 2021, prepared by the employing establishment testing center, which indicated that appellant’s test was positive for COVID-19.

In a medical report dated October 22, 2021, Dr. Alfredo R. Dosdos, an internist, noted that appellant was first seen on October 5, 2021. He related appellant’s diagnosis as “COVID-19 pneumonia” and placed him on work restrictions starting October 5, 2021. The report further indicated that this condition was due to work-related exposure.

By decision dated March 21, 2022, OWCP denied appellant’s claim for COP, finding that he had not reported his injury on an OWCP-approved form within 30 days of his alleged October 5, 2021 employment injury. It advised appellant that the denial of COP did not affect his entitlement to other compensation benefits.

LEGAL PRECEDENT

Section 8118(a) of FECA authorizes COP, not to exceed 45 days, to an employee who has filed a claim for a period of wage loss due to a traumatic injury with his or her immediate superior on a form approved by the Secretary of Labor within the time specified in section 8122(a)(2) of this title.3 This latter section provides that written notice of injury shall be given within 30 days.4 The context of section 8122 makes clear that this means within 30 days of the injury.5

OWCP’s regulations provide, in pertinent part, that to be eligible for COP, an employee must: (1) have a traumatic injury which is job related and the cause of the disability and/or the cause of lost time due to the need for medical examination and treatment; (2) file Form CA-1

3
Id. at § 8118(a).
4
Id. at § 8122(a)(2).
5
E.M., Docket No. 20-0837 (issued January 27, 2021); J.S., Docket No. 18-1086 (issued January 17, 2019);
Robert M. Kimzey, 40 ECAB 762-64 (1989); Myra Lenburg, 36 ECAB 487, 489 (1985).

2 within 30 days of the date of the injury; and (3) begin losing time from work due to the traumatic injury within 45 days of the injury.6

FECA Bulletin No. 21-09 at subsection II.2, however, provides that, “The FECA program considers COVID-19 to be a traumatic injury since it is contracted during a single workday or shift (see 20 C.F.R. § 10.5(ee)), and considers the date of last exposure prior to the medical evidence establishing the COVID-19 diagnosis as the date of injury since the precise time of transmission may not always be known due to the nature of the virus.”7

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish entitlement to COP.

The record reflects that appellant filed written notice of his traumatic injury on a Form CA-1 on March 11, 2022, alleging that on October 5, 2021 he was exposed to COVID-19 in his employing establishment’s hospital emergency room while in the performance of duty. He tested positive for COVID-19 and was placed on work restrictions as of that date. As previously noted, FECA Bulletin No. 21-09 defines date of injury as the date of last exposure, which in this case was October 5, 2021.8 As appellant filed his Form CA-1 on March 11, 2022, more than 30 days after the October 5, 2021 date of injury, the Board finds that appellant has not met his burden of proof.

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish entitlement to COP.

6
20 C.F.R. § 10.205(a)(1-3); see also T.S., Docket No. 19-1228 (issued December 9, 2019); J.M., Docket No.
09-1563 (issued February 26, 2010); Dodge Osborne, 44 ECAB 849 (1993); William E. Ostertag, 33 ECAB 1925 (1982). 7 FECA Bulletin No. 21-09.II.2 (issued April 29, 2021). On March 11, 2021 the American Rescue Plan Act of 2021 (ARPA) was signed into law. Pub. L. No. 117–2. OWCP issued FECA Bulletin No. 21-09 to provide guidance regarding the processing of COVID-19 FECA claims as set forth in the ARPA. Previously, COVID-19 claims under FECA were processed under the guidelines provided by FECA Bulletin No. 20-05 (issued March 31, 2020) and FECA Bulletin No. 21-01 (issued October 21, 2020). FECA Bulletin No. 21-09 supersedes FECA Bulletin Nos. 20-05 and 21-01. 8 Id.

3
 ORDER

IT IS HEREBY ORDERED THAT the March 21, 2022 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: April 20, 2023
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

4